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08 September 2012

Was shutdown of Genesee County animal control volunteer program illegal retaliation?

The head of Michigan's Genesee County animal control department, Walt Rodabaugh, may have violated the civil rights of the shelter's volunteers when he disbanded the volunteer program after they complained to his superiors about a recent raid some claim was both unwarranted and bungled.

Apparently Rodabaugh has never read the First Amendment and didn't realize that citizens have the constitutionally guaranteed right to petition the government for redress of grievances, because he actually told reporters that volunteers complaining about the raid is the reason he was shutting down the program. From MILive:

Rodabaugh said he knows shelter volunteers complained about the
raid to his bosses -- the county Board of Commissioners -- and said they
should be more loyal to the organization they help by giving of their
time.

"My thing is, if you're going to
volunteer for an organization, you support that organization," he said.
"You don't (fight) that group, you work with them."

Rodabaugh
told two volunteer groups Thursday that he was suspending a program in
which members walk dogs and work with shelter animals.

Because of course, Rodabaugh being a big whiny baby trumps the volunteers' constitutional rights any day, right? Wrong. From attorney Sheldon Eisenberg's "Section 1983 to the Rescue," a discussion of how a federal civil rights statute protects volunteers at shelters from being banned from volunteering because they exercised their rights:

There can be no dispute that complaining about abuses or violations
of law at shelters is a constitutionally protected right. A rescuer not
only has the First Amendment right to speak out against abuses and
violations of law committed by a governmental entity, he or she also has
a constitutionally protected right to demand that the government
correct the wrongs that are identified. This includes the right to
threaten to sue or to actually file suit against the shelter.

Government officials rarely admit that they have intentionally meted
out punishment beyond the scope of their legal power; therefore, the law
allows plaintiffs to use direct or circumstantial evidence to establish
that punishing protected conduct was the government’s motive in an
action such as suspending adoption rights. Circumstantial evidence may
include showing that the rescuer’s privileges were withdrawn within a
narrow time frame around the time he or she engaged in protected
conduct, and that no other explanation or reason was given for the
rescuer’s punishment.

The last element of the Section 1983 claim, actual injury, can be
demonstrated merely by showing that the rescuer has suffered a loss of
any governmental benefit or privilege. It is important to emphasize
that the loss of a common benefit counts as injury; a rescuer need not
establish a legal right to adopt animals or take advantage of any other
benefits afforded by a shelter. As the Supreme Court has stated, a
government entity “may not deny a benefit to a person on a basis that
infringes his constitutionally protected interests—especially, his
interest in freedom of speech.” Therefore, it should be enough to show,
for example, that a person has been deprived of his or her ability to
volunteer at, or to adopt animals from, a shelter.

A question may arise as to whether a volunteer or rescuer needs to
wait for a government official to follow through on a threat to
retaliate before filing a claim under Section 1983 or whether a threat
of retaliation alone is sufficient to trigger one. For example, some
volunteers have been told by officials that publicly speaking about a
shelter will result in the volunteer being banned. Since the whole point
of a Section 1983 retaliation claim is to prevent the “chilling”
(discouragement) of constitutionally protected rights, it seems clear
enough that a threat of retaliation for exercising those rights, which
is specifically designed to obstruct the exercise of those rights,
should be sufficient to satisfy the actual injury element of a Section
1983 claim.

Ivory tower theory that has no chance of surviving in a court of law? Not hardly. From the No Kill Advocacy Center's Nathan Winograd:

In 2008, Los Angeles rescuers teamed up with the No Kill Advocacy
Center to file a lawsuit which alleged that the civil rights of
volunteers and rescuers were being violated as retaliation for going
public with their observations of inhumane conditions and neglectful
treatment at the shelter. The court agreed.

In applying a federal civil rights statute to this area, the
court gave animal activists a powerful weapon to reform the nation’s
broken animal shelter system. Volunteers and rescuers no longer have to
choose between remaining silent about abuses or risk losing their
ability to help some animals by volunteering or rescuing them from death
row.

Eisenberg was the attorney who brought that lawsuit.

There will be a county Board of Commissioners' meeting on Wednesday, Sept. 12, at 9 AM at the
Genesee County Administration Building at 1101 Beach Street in Flint, Michigan. More details, including directions, are here.

I'm going; if you're anywhere nearby, I hope you'll show up, too. You can also let the Board know your thoughts by faxing them at (810) 257-3008.

In all the cases I've ever seen where retaliatory firings/bannings have been later established to have taken place, no one has EVER come out and said, "I fired them/banned them/shut down the program because they complained." This statement comes closer to doing just that than any I've ever read or heard.

Additionally, as I've continued to investigate the story since writing this yesterday, I have learned that the allegations of "legal, union and risk management problems" also involve complaints by the volunteers, so if anything, I'm even more suspicious of relatiation. However, I will certainly update the story with whatever I find out, including if my view of the story at this stage turns out to be wrong.

Now i'm reading some people are scared to show cause they will be blacklisted.. really now.. seems if that is the case they won already. so if i understand this right people are concerned they will be targeted, targeted to what? not helping an animal if one is to call them. hell they don't come now seem we are all already blacklisted and targeted.. prisoner are treated better then these animals..

As long as we let ourselves get pushed around, we'll keep getting pushed around. If exercising your right as a citizen to attend a meeting of your local government and discuss issues that matter to you, or just SHOW UP while others discuss them, is enough to get you blacklisted from volunteering at your local municipal shelter, isn't it patently and even painfully obvious that you are in the right, and this law will protect you? But nothing will protect you if you won't even stand up for your own rights.

Here's an update: Bob Gorman, chief steward of the American Federation of State, County and Municipal Employees Local 496 Chapter 01, which is the union of the employees at the shelter, was interviewed by MLive about the union being the reason the volunteers were let go:

"Despite concerns, the union has no grievances pending about the volunteers, Gorman said, and the AFSCME representatives haven't been in formal talks with the county about the issue."

Sorry this is a late comment, but I'm guessing that if volunteers are allowed in but supervised by a 'Friends of' group, then they can legally be kicked out since it wouldn't actually be the city/county government entities doing the kicking? Do you have any legal info on this?